Legal personality

A legal person or legal entity is an association of persons or a pool of assets that is legal nature of public recognition, that is itself may be bearers of rights and duties, and in contrast to the so-called unincorporated companies ( § 14 para 2 BGB ) or other unincorporated associations (eg pros GmbH) capable moderately completely independent ( in the sense of a limited liability company).

Legal entity of civil law

Basic form of the legal person of private law is the registered association ( eV ), which is defined in Title 2, Subtitle 1 of the Civil Code. Other entities, such as the limited liability company, joint-stock company and registered cooperative, build on this basic shape.

You acquire legal personality through registration with a guided in court register (eg, commercial register, the register of associations ).

Question the capacity of legal persons

Whether legal persons not only legal, but also are able to act thus in a position to be even quite significantly active, has been controversial for a long time. The doctrine of the real personality association, whose main representative was Otto von Gierke, assumes that the legal person is to be equated with the actually existing epitome of its members or materials. They therefore came to the conclusion that the legal person - through its institutions - can actually act.

For the fiction theory, however, which is commonly associated with Friedrich Carl von Savigny, the legal entity is merely a fictitious attribution endpoint, ie an imaginary something which accordingly also can not act. According to her, the legal person is represented by their organs or organ trustees. The result is usually the same.

However, there are cases in which the two doctrines lead to different results. As an example, the question was called, whether and how the legal entity must be imputed to the knowledge of an organ. According to the doctrine of the real association personality (in this context also called organ theory ) the organ is part of the person. Knowledge of the organ is thus always at the same time knowledge of the person.

The followers of the fiction theory recognize the legal person against it - because in reality do not exist - not the ability to to have such a thing as knowledge or knowledge.

Background of this controversy is the contrast between more individualistic and more collectivist concept-tions - the Roman law and the German legal tradition. Most academic writers follow the tendency collectivist doctrine of real personality association.

Preparation of legal persons of private law

Legal persons governed by private law are:

• Private law bodies Association ( a registered association, altrechtlicher club, unincorporated economic association)
• Joint-stock company
• Partnership limited by shares
• Limited liability company
• Unternehmergesellschaft
• Registered cooperative
• European Society

Legal entity of public law

Legal persons governed by public law legal entities that have legal personality by law to public law and private law field. They are made (eg, communities or churches ) due to legal or sovereign acts of public recognition. Together you is the right of self-government, they are subject to supervision by the State and can usually put objective law for their mission through statutes.

Generally, a distinction is made between:

• Bodies,
• Institutions of public law and
• Public law foundations.

Subspecies of bodies of which compulsory membership represents a common criterion of its establishment are

• Government (federal, state, counties and municipalities),
• Personal and real entities (associations, chambers of commerce and industry, chambers of handicrafts or professional associations such as the chambers of lawyers ), and - mainly - universities ( universitas is Latin for body ).

The institutions are divided into

• Direct federal institutions (such as the German National Library )
• Nationwide direct institutions (eg broadcasters )
• Municipal institutions ( for example, a municipality outsourced farms ).

One of the foundations of public law include, for example, the

• German Federal Foundation for the Environment,
• The Prussian Cultural Heritage Foundation,

But also

• Foundation universities such as the University of Göttingen. Not quite capable, for example, the University of Applied Sciences of the covenant.

Legal persons governed by public law, either federal law ( § 12 para 1 Insolvency Act ) or state law ( eg § 128 para 2 GemO NRW ) is not capable of insolvency proceedings.

Some churches was awarded 141 Weimar Constitution, the so-called corporate status due to continued in force under Article 140 of the Basic Law provisions of Articles 136-139 and Article. These also provide the right to an independent labor of the churches is derived.

Legal History

In the 19th century, various theories about the independent legal- dogmatic interpretation and classification of bodies of persons, estates, inter alia, in the current law competed (so-called Common Law ). The legislature of the German Empire (1871-1945) opted for the legal fiction of " legal person " and anchored them as new laws institution in which entered into force on 1 January 1900 " Civil Code Book" (BGB).

As a result, the legislature created the strictly limited number of specific statutory legal entity ( registered association / eV, limited liability company / GmbH, a limited partnership / KG, a limited company / AG and most recently, the European Company / SE and the Economic Interest Group / EEIG ).

This was 1900, the leading counter- opinion from independent " purpose fund " discarded. It was 1857 - in detail executed in 1860 - of the prominent Bavarian jurists of Roman law Alois Ritter von Brinz ( 1820-1887 ) was founded. An association, a joint stock company and so on is not a "legal person", but a " property which belong to something," a " purpose fund ". While the famous theory set, turning the empty word " purpose fund " spread unabated. A century after the statement of purpose fund theory of Brinz by Gerold Schmidt in 1969 traced the imprecise, often dazzling proliferation of the term in numerous legal, economic and tax areas in a comprehensive monographic inventory. " Purpose Fund " is then often advanced as the legal owner of a property is unknown or is disguised with intent.

Most are so-called " Special Purpose Fund " to expose as normal trust assets that are attributable to the ownership of the settlor.

Demarcation

The terms corporation, company, legal entity and association are often used interchangeably or closely related. As shown in this article, these terms are legally distinguish from each other, as each has its own meaning.

A detailed list of types of private law legal persons located in the Product legal form.

Partnerships are prevailing opinion not legal persons within the meaning of company law. However, they are captured by the notion of legal persons within the meaning of constitutional law (see Article 19, paragraph 3 GG), so they can be carriers of fundamental rights.

Protection of fundamental rights of foreign legal entities

Foreign legal persons who are domiciled in the European Union, are according to the recent case law as well as domestic holders of fundamental rights within the meaning of Article 19, paragraph 3 of the Basic Law if their activity " has sufficient domestic connection " one.

This will be regularly the case if the legal entity is based in Germany and complain here before the specialized courts and can be sued. The European legal prohibition of discrimination against foreigners and fundamental freedoms not displace in this case, the provision of Article 19 paragraph 3 of the Basic Law, but they cause the extension of the protection of fundamental rights to other entities of the European internal market. The protection of fundamental rights had previously been advocated in these cases, only in the literature.